Employee Performing Imaginative and Creative Work not

a Workman Under the Industrial Disputes Act, 1947

Submitted by Firm:
Trilegal
Firm Contacts:
Atul Gupta
Article Type:
Legal Update
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Introduction

Workmen under the Industrial Disputes Act, 1947 (Act) are defined as employees who have been engaged to do
manual, unskilled, skilled, technical work but excludes people who are (a) employed in managerial or
administrative capacity; and (b) employed in supervisory capacity if their wages exceed Rs 10,000 per month.
The question of whether the work performed by an educated and highly skilled employee of an IT/ITES company
would be ‘skilled, manual, technical or unskilled’ for such an employee to be a workman under the Act, has taken
significance in the recent times.

Divyash Pandit vs. The National Council for Cement and Building Materials[1]

Recently, the Delhi High Court, in the case mentioned above, decided on the question of whether an engineering
graduate working as a scientist was a workman under the Act. In this case, the employee was an engineering
graduate who was carrying out research work in the process engineering field related to cement industry and had
special knowledge in this line of work. The court held that research work would not be skilled, unskilled, manual
or technical work and such an employee would not be a workman under the Act.

Analysis

The Delhi High Court in the above case held that “The very nature of scientific research, which the appellant was
carrying out, runs counter to his being a manual, unskilled, skilled, technical, operational or clerical worker within
the meaning of Section 2(s) of the Act. We fail to appreciate how a scientist, who is a qualified engineering
graduate and, is engaged in research work as well as supervising the work of other employees can be said to be
a workman”. The decision of the courts is based on the fact that research work, being very specialized and
involving imagination and creativity would not be skilled, manual, technical or unskilled work. A similar view has
been taken in the case of Tata Sons Ltd. vs. S. Bandyopadhyay[2] where an employee providing consultancy
services for risk management and development of business for marketing purposes was not a skilled worker. The
Court in this case held that the nature of work clearly involved a considerable amount of mental inputs related to
creativity and imagination and that such work would not fall within the meaning of the terms manual, skilled,
unskilled or technical.

Conclusion

As a result of these judgements there is now more ambiguity than ever in the already abstruse definition of
workman. The courts appear to be creating a distinction between skilled and highly skilled employees without
actually setting out clear parameters on how and when to classify them as such. While these judgments would
have persuasive value in the case of engineering graduates hired by IT/ITES companies, it would be crucial for
companies to demonstrate that the work performed by such employees are imaginative, creative and highly
specialized. In the case of employees performing routine software development and data management work, it
may be difficult to demonstrate that such work falls outside the definition.